Saturday, August 30, 2014

Most cops in this country see the guy who carries an exposed handgun
when he doesn’t have to as a show-off, especially in a setting where the
overwhelming majority of others don’t carry. Particularly when one of
the citizens is alarmed and makes that clear to the officer, the cop may
want to know why you felt a need to flaunt lethal force in a peaceful
setting. While the act of carrying may be technically legal, a citizen’s
complaint about it can create probable cause for arrest on a charge of
disturbing the peace or disorderly conduct, particularly if you become
argumentative with that officer. At least one state has a statute that
prohibits “Going Armed To The Terror of the Public.”

After being acquitted for murder (right) David Barajas hugs and gets a
kiss from his wife (left) Cindy Barajas while addressing the media at
the Brazoria County courthouse Wednesday August 27, 2014. David Barajas,
32, was accused of shooting Jose Banda, 20, after he struck his two
sons, aged 11 and 12, on a rural Texas road in 2012.

The bereaved father who witnessed the death of his two young children
did not murder the drunken driver who killed them, a jury here in
Brazoria County decided Wednesday, a coda that ratcheted up the emotions
already thought to have peaked when both sides lost loved ones.

The jury acquitted David Barajas, who faced a murder charge in the
shooting death of a 20-year-old man, Jose Banda. Banda drove his
Chevrolet Malibu into the children while they pushed their father's
stalled Ford 250 truck on an unlit road near Alvin to their nearby
house. In a fit of retaliatory rage, prosecutors argued, Barajas
returned to his home, retrieved a pistol and fired away at Banda's head
with revenge.

But prosecutors faced an uphill climb in erasing
any reasonable doubt in jurors' minds. Police failed to produce a murder
weapon linked to the killing, gunpowder residue tests on Barajas' hands
were negative and no witnesses saw anything that transpired on the dark
December night. Though Barajas' attorneys could not identify who else
could have killed Banda, who had a blood alcohol level twice the legal
limit, the lawyers managed to create enough ambiguity that pushed a
conviction out of reach.

Friday, August 29, 2014

The estimated value of the tea in the Boston Tea Party is one million dollars in current funds

9. The financial loss was significant.
It’s estimated that the protestors tossed more than 92,000 pounds of tea
into Boston Harbor. That’s enough to fill 18.5 million teabags. The
present-day value of the destroyed tea has been estimated at around $1
million.

The Tea Act was a government bailout for a company on the brink of
financial collapse, the flailing East India Company, which was deemed to
be, in modern terms, “too big to fail.” The legislation gave the East
India Company a virtual monopoly on the American tea trade, allowing it
to bypass colonial merchants as middlemen and to even undercut the price
of smuggled Dutch tea, which was widely consumed in the colonies. Thus,
the Tea Act directly threatened the vested commercial interests of
Boston’s wealthy merchants and smugglers, such as John Hancock, who
fomented the revolt.

In other words, the actual tea partiers had a lot more in common with the occupy people than they do with people who wish to claim their mantle.

In fact, the real issue was more like a corporate subsidy than an actual tax, but the ultimate issue was local decision making ("no taxation without representation").

Many Americans viewed the Boston Tea Party as an act of vandalism by radicals rather than a heroic patriotic undertaking. People held that private property was sacred and that the vandals should compensate the property owners, in this case, the British East India Company.

It turns out that gun violence isn't just a public safety issue—it's also extremely expensive for taxpayers.

The
total national hospital costs associated with firearm assault injuries
ballooned to almost $700 million in 2010, according to a new analysis by The Urban Institute. And the
bulk of those costs—almost three-quarters of them, to be more
precise—aren't being paid for by the perpetrators, victims, or insurance
companies, but rather by the American public.

"Most of this cost
is paid for by the public, either through public insurance programs
such as Medicaid or as uncompensated care for the uninsured," the
Institute said in its report. "In a time of restricted public resources,
these findings suggest that significant public resources could be saved
or redirected if effective gun-violence prevention strategies could be
identified."

Gates is only the latest Washington billionaire to give to the
effort, with original Amazon investor Nick Hanauer providing crucial
early funding, and more recently upping his overall donation to $1.4
million. Additionally, Gates’s Microsoft co-founder, Paul Allen, has
provided $500,000 for the cause.

It seems that Ammoland took a poll and found a significant percentage of its readers believe that armed revolution is somehow an option.

Once again, From the United States Constitution, Article III, Section iii, states:

Treason against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession in
open Court.

I know you people have serious problems with reading and understanding the English language, but this is pretty clear in its meaning.

As Joseph Story said about this:

The propriety of investing the national government
with authority to punish the crime of treason against
the United States could never become a question with any
persons, who deemed the national government worthy of
creation, or preservation. If the power had not been expressly
granted, it must have been implied, unless all the
powers of the national government might be put at defiance,
and prostrated with impunity.

The Second Amendment in no way repeals this section of the Constitution--no matter what your diseased minds may tell you.

While you may wish to believe that "libtards" somehow are the ones destroying the Constitution, you are obviously wrong in that assertion if you support people who would overthrow this nation by force of arms for whatever reason you would go against the government run under the framework of the United States Constitution.

I strongly suggest that you reassess your position on this matter.

Should you find that you still advocate the use of arms against the United States realise that you are a traitor.

Those aren't my words, those are the words of the document you claim to support.

While this song is about Palestinians, I think this applies to right wing assholes who claim to hate Muslims while being willing to wage war against their own nation:

Thursday, August 28, 2014

Of course, Scalia dismissed it in his exposition of mendacity called District of Columbia v. Heller, 554 U.S. 570 (2008), but he also dismissed such pearls as:

With obvious purpose to assure the continuation and render possible the
effectiveness of such forces the declaration and guarantee of the Second
Amendment were made. It must be interpreted and applied with that end
in view.

and

To make this view of the case still more clear, we may
remark, that the phrase, "bear arms," is used in the Kentucky
constitution as well as in our own, and implies, as has already been suggested, their military use.The
28th section of our bill of rights provides, "that no citizen of this
State shall be compelled to bear arms, provided he will pay in
equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A
man in the pursuit of deer, elk and buffaloes, might carry his rifle
every day, for forty years, and, yet, it would never be said of him,
that he had borne arms, much less could it be said, that a private
citizen bears arms, because he has a dirk or pistol concealed under his
clothes, or a spear in a cane. So that, with deference, we think
the argument of the court in the case referred to, even upon the
question it has debated, is defective and inconclusive

Since they "weren't helpful".

That's putting it mildly--they totally contradict your position.

After all, why not dismiss anything which shows that what you are saying is total bollocks?

The American people are too happily ignorant to notice anyway.

Anyway...

Presser basically is making the same tired argument we hear over and over about being part of an unorganised militia, except that term didn't have actual currency back then in US Federal law. The court tossed that argument since Presser wasn't part of the enrolled militia.

Even better, Presser actually addressed the incorporation issue. If Heller is a joke, then McDonald v. Chicago is even worse of a joke since Presser came to the correct conclusion about the matter:

We think it clear that the sections under consideration, which only
forbid bodies of men to associate together as military organizations, or
to drill or parade with arms in cities
[116 U.S. 252, 265]
and towns unless authorized by law, do not infringe the right of
the people to keep and bear arms. But a conclusive answer to the
contention that this amendment prohibits the legislation in question
lies in the fact that the amendment is a limitation only upon the power
of congress and the national government, and not upon that of the state.

Yeah, the Second Amendment relates to congress' power under article I, Section 8, Clauses 15 & 16--not state power.

I thought that Alito was on the ball when he asked if congress' power was "plenary" in the Heller. Yeah, it is which means that the answer is:

The right is related to the militia and congress' power to arm it

Seriously, you had it right in US v Rybar, 103 F.3d 273 (3d Cir. 1996), WHAT MADE YOU GO FOR THE INTELLECTUALLY DISHONEST POSITION??? DIDN'T THINK YOU WOULD GET CAUGHT????Back to the story, Presser concerned people openly carrying while pretending to be a militia and claiming their Second Amendment right, but the court swatted it down saying:

It is undoubtedly true that all citizens capable of bearing arms
constitute the reserved military force or reserve militia of the United
States as well as of the states, and, in view of this prerogative of the
general government, as well as of its general powers, the states
cannot, even laying the constitutional provision in question out of
view, prohibit the people from keeping and bearing arms, so as to
deprive the United States of their rightful resource for maintaining the
public security, and disable the people from performing their duty to
the general government. But, as already stated, we think
[116 U.S. 252, 266]
it clear that the sections under consideration do not have this effect.

Oh dear, it's that nasty civic right interpretation.

And, unlike Justice Stevens' version, this one actually got it right on incorporation.

Presser even compares the First Amendment claim:

We have not been referred to any statute of the United States which
confers upon the plaintiff in error the privilege which he asserts. The
only clause in the constitution which, upon any pretense, could be said
to have any relation whatever to his right to associate with others as a
military company, is found in the first amendment, which declares that
'congress shall make no laws ... abridging ... the right of the people
peaceably to assemble and to petition the government for a redress of
grievances.' This is a right which it was held in U. S. v. Cruikshank,
above cited, was an attribute of national citizenship, and, as such,
under the protection of, and guarantied by, the United States. But it
was held in the same case that the right peaceably to assemble was not
protected by the clause referred to, unless the purpose of the assembly
was to petition the government for a redress of grievances. The right
voluntarily to associate together as a military company or organization,
or to drill or parade with arms, without, and independent of, an act of
congress or law of the state authorizing the same, is not an attribute
of national citizenship. Military organization and military drill and
parade under arms are subjects especially under the control of the
government of every country. They cannot be claimed as a right
independent of law.

By now, I am laughing my arse off since this case is a serious nugget when looked at in relation to the farce that is Heller-McDonald. Combine Presser with Miller, and Heller-McDonald is the serious odd man out.

As I have been pointing out, it is a tough stretch to say that carrying weapons in public outside the national defence context is protected (again, the US Constitution makes it clear it addresses NATIONAL Defence and no where mentions self-defence).

I keep mentioning that if the law is silent on the topic, one cannot assume or imply it is somehow addressed, which is something else Presser mentions:

Under our political system they are subject to the regulation and
control of the state and federal governments, acting in due regard to
their respective prerogatives and powers. The constitution and laws of
the United States will be searched in vain for any support to the view
that these rights are privileges and immunities of citizens of the
United States independent of some specific legislation on the subject.

In the case of the Second Amendment, it is silent on personal uses if firearms, unlike state constitutions which specifically mention self-defence. That was something Justice Stevens pointed out in his dissent. In fact, some State Constitutions offer a greater level of protection for "gun rights" than the US Constitution.

Anyway, I think Presser makes it pretty clear the right is tied to militia service:

It cannot be successfully questioned that the state governments,
unless restrained by their own constitutions, have the power to regulate
or prohibit associations and meetings of the people, except in the case
of peaceable assemblies to perform the duties or exercise the
privileges of citizens of the United States, and have also the power to
control and regulate the organization, drilling, and parading of
military bodies and associations, except when such bodies or
associations, are
[116 U.S. 252, 268]
authorized by the militia laws of the United States. The
exercise of this power by the states is necessary to the public peace,
safety, and good order. To deny the power would be to deny the right of
the state to disperse assemblages organized for sedition and treason,
and the right to suppress armed mobs bent on riot and rapine.

As a nation has the right to national defence, a state has the right to legislate for the general welfare.The ability to regulate or prohibit arms is something which is necessary to the public peace,
safety, and good order.
It is not for judges to make law, but to interpret it. It is even less their place for judges to amend the constitution outside the written constitutional framework. The court went well beyond any constitutional powers that it was granted by making this decision for there is no constitutional provision which allows for judicial reviews of laws (that comes from Marbury v. Madison, 5 U.S. 137 [1803]).

I keep wishing that someone with more academic clout/prestige would take up these arguments, but it seems that I am the little boy who is saying the emperor has no clothes here.

The argument on the pro gun side is "When handled responsibly and under ideal conditions, guns are a harmless tool" My argument is...people can't even tell when an Onion article about things pro-gunners do or say is a joke, and people like this are EVERYWHERE.

Grammarly ran this picture of a sign thinking there might be missing punctuation:

Personally, I am not so sure with the amount of people who are "accidentally", or even intentionally shot in places with "get away with murder" laws that this might be a grammatical error. People are accidentally shot while hiking on trails: the Appalachian Trail even gives a warning to hikers to wear orange in hunting season to try to avoid hikers being shot.

Take this sign:

It might not be too far off to suggest the first sign WASN'T a grammatical error when people walk around armed in inappropriate situations. Additionally, shootings are given a slap on the wrist, if even punished.

As the song goes: "Yanks with guns, say shooting people, is such fun".

What does someone have to do in order to lose gun rights in Georgia?
Apparently, sexually assaulting a woman at gunpoint—even threatening to
anally penetrate her with the gun—is not enough. Ian Millhiser at ThinkProgress reports on the shocking case of Dennis Krauss,
a now former police officer who was convicted of sexually assaulting a
woman in 1999 who had called 911 to complain that her husband was
beating her. According to the appeals court decision that
upheld Krauss' conviction, instead of helping the woman, Krauss
threatened to take her to jail if she didn't have sex with him.

Krauss checked them into a motel room while the woman sat terrified,
thinking she was under arrest, in the car. "I had to, I was afraid to
leave, he, you know, he is a police officer; you don't just leave," the
victim explained. Once he had her in the motel room, according to the
2003 appeals court decision, "Krauss took his gun from his gun belt and
told the victim he wanted to have anal sex with her with the gun." Then
he pushed her, pulled off her pants, and raped her.

Despite Krauss' sexual assault conviction, the Georgia State Board of
Pardons and Paroles restored his right to carry a firearm in July 2013.
This is coming to light now because the Atlanta Journal-Constitution has published an exposé of the Georgia courts' tendency to restore gun privileges to convicted felons. The Journal-Constitution counted
358 violent felons who were able to regain gun rights in a six-year
period, 32 who killed someone and 44 who were convicted of sex crimes.

Wednesday, August 27, 2014

Lt.
Cook points out it's against the law to knowingly file a false police
report. But he said the greater fear is that citizens fail to report
armed individuals, either because they feel intimidated or because
they've become desensitized to guns on the streets.www.wfaa.com/story/local/2014/08/27/14203536/

Attorney: New audio reveals pause in gunfire when Michael Brown was shot

(CNN) -- Could a newly released audio provide more clues on what led up to Michael Brown's shooting death?

The FBI has questioned a man who says he recorded audio of gunfire at the time Brown was shot by Ferguson, Missouri, police on August 9, the man's attorney told CNN.

In the recording, a quick series of shots can be heard, followed by a pause and then another quick succession of shots.

Forensic audio expert Paul Ginsberg analyzed the recording and said he detected at least 10 gunshots -- a cluster of six, followed by four.

New audio of Michael Brown shooting?

"I was very concerned about that pause ... because it's not just the number of gunshots, it's how they're fired," the man's attorney, Lopa Blumenthal, told CNN's Don Lemon. "And that has a huge relevance on how this case might finally end up."
What could audio of shooting reveal?
The funeral of Michael Brown The funeral of Michael Brown

The man, who asked that his identity not be revealed, lives near the site of the shooting and was close enough to have heard the gunshots, his attorney said.

He was speaking to a friend on a video chat service and happened to be recording the conversation at the same time Brown was shot, Blumenthal said.

A further complication to understanding the audio, which appears to record 10 shots is that unconfirmed reports indicate there were 12, not 10, bullet casings found at the scene.
This does make it appear that the cop, Darren Wilson, who previous to his hire at Ferguson worked at a police department that had such bad race relations with the community that it was DISSOLVED, emptied his weapon into Michael Brown.

One of the problems with you lot is that you are really super at taking things out of context.

We have two different phrases at work here

per se--on its own

illegal per se means that the act is inherently illegal

An act is illegal per se without extrinsic proof of any surrounding circumstances such as lack of scienter (knowledge) or other defenses. Acts are made illegal per se by statute, constitution or case law.

For example, Many drunk driving laws make driving with a blood alcohol content over a certain limit (such as 0.05% or 0.08%) an act which is illegal per se.

This quote means that carrying a gun is not illegal without some other contributing factor. In the case of open carry, that would mean causing a disturbance, or in the case of the NC statute being armed to the terror of the people.

Thus, while carrying a gun without any other factor is not illegal--the fact that you have caused terror in the public (even if they are being "hoplophobes" in your opinion) is what makes the act illegal.

Again, the fact that you feel the need to "educate" to seeing armed people in publi the public betrays your attempted defence of saying this was innocent, since deep down you must know this is not normal behaviour.

It is not your unqualified opinion that will keep you out of trouble, but knowing the law.

Your interpretation might be more detrimental than you would believe.

But, I know that you know much more about the law than I do. You can live with the results of your knowledge.

I'm not sure if you've seen this interesting development out
west, but it seems to make good sense to me. And interestingly, the
judge who made this decision was nominated by then President Clinton.

"A
federal judge has overturned part of a California law requiring a
10-day waiting period for gun buyers, ruling that it does not apply to
those who already own firearms.

U.S. District Judge Anthony
Ishii of Fresno ruled late last week that "10-day waiting periods
impermissibly violate the Second Amendment" for gun-buyers who already
passed background checks or are authorized to carry concealed weapons.

"There
is no evidence that a 'cooling off period,' such as
that provided by the 10-day waiting period, prevents impulsive acts of
violence by individuals who already possess a firearm. A waiting period
for a newly purchased firearm will not deter an individual from
committing impulsive acts of violence with a separate firearm that is
already in his or her possession," he said in his ruling."

"Ishii
delayed the effective date of his order for six months to give the
state time to appeal or the Legislature time to adopt new rules. For
instance, he suggested lawmakers might want to change state law to allow
law enforcement officials to delay the delivery of a firearm if they
have reason to suspect that the buyer intends to illegally pass on the
weapon to someone else."

Tuesday, August 26, 2014

Open carry advocates create a potentially very dangerous situation.
When police are called to a “man with a gun” call they typically are
responding to a situation about which they have few details other than
that one or more people are present at a location and are armed.
Officers may have no idea that these people are simply “exercising
their rights.” Consequently, the law enforcement response is one of
“hypervigilant urgency” in order to protect the public from an armed
threat. Should the gun carrying person fail to comply with a law
enforcement instruction or move in a way that could be construed as
threatening, the police are forced to respond in kind for their own
protection. It’s well and good in hindsight to say the gun carrier was
simply “exercising their rights” but the result could be deadly. Simply
put, it is not recommended to openly carry firearms

In fact, this is really a test to see if people actually do read beyond the title of a blog post. I wanted to find something that would set you off emotionally as a title; after all, people writing articles on contract law (or something else where an amendment is present) say something about a "Second Amendment" and the gun loons are all over them like flies on shit.

That's because most people (I'll admit to it as well sometimes) don't really read beyond the first few lines of a blog post. This is to see if you can get beyond the title.

In fact, given what people say about what I write, I can tell you don't actually read my posts. You definitely don't look at my sources.

Also, you people claim that "A well-regulated militia" has nothing to do with the rest of the Second Amendment, while it's actually the most important part of it since it announces the purpose. IT EVEN SAYS IT'S NECESSARY!!!

You would think a title has something to do with the post--wouldn't you? Are you saying the first part of the Second Amendment was some sort of sick trick pulled by the founders?

Part of me is interested in what the comments to this will be, whether you will actually read this far and see this really has nothing to do with banning guns.

Or whether your emotions will overpower any intellect you possess and start saying things about "banning guns": even though that really has nothing to do with this post.

It's really a test to see if you are actually paying attention more than anything else.

My guess is that you aren't, which explains a lot about our interactions.

In fact, you people are more than willing to make fools of yourself for me that it doesn't take too much prompting.

The Fifth Amendment to the United States Constitution says:
[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . .
Section One of the Fourteenth Amendment to the United States Constitution provides:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .

Now, who are you saying doesn't respect the Constitution? I guess that doesn't apply to private actions.

And the right and value of life for people who are actually alive? Nonexistant.

I know you people love monopoly, robber baron capitalism. Deep down, you probably love Bill Gates for taking something which should have been in the public domain (Xerox PARC invented windows, but refused to patent it) and is now charging you an arm and a leg for the privilege of using it.

If you are a real sucker (and given you actually believe the Second Amendment has nothing to do with a "well-regulated militia" despite its being "necessary to the security of the free state")--you probably are and you may even have bought his shitty "Office" software.

I give you this:

Bill Gates, wife donate $1M to gun initiative

The dude has more money than god and he only gives $1M.

Anyway, when you buy something which the European Union has whacked with competition fines for manipulating the marketplace and think is really good, you are helping fund gun control!

Of course, given the name and it sounds like something Barack Obama would use (the French Gendarmerie Nationale do as well), you will happily go along supporting a robber baron who has no interest in your needs or concern.

I should also add that Ubuntu is "open sourced", which means that it was designed as a collective effort (collectivism/socialism/communism).

So, your choice is monopoly, robber baron, capitalism which supports gun control or Collectivist which may or may not support gun control (but, most civilised and intelligent people see a need for regulating firearm ownership).

But, you've been doing that anyway by being a sucker and voting for candidates who oppose "gun control".

Monday, August 25, 2014

If people are going to try and claim that there is some form of "Second Amendment right" to carry a weapon in public outside the context of actual militia service (like it or not, Presser v. Illinois, 16 U.S. 252 [1886] seems to be quite on point that it is not protected).

This is a common law offense. Common law made it clear that it was contrary to law to go about in public. ,
"the offence of riding or going armed with dangerous or unusual
weapons, is a crime against the public peace, by terrifying the good
people of the land; and is particularly prohibited by the statute of Northampton, 2 Edward 3d, ch. 3d, upon pain of forfeiture of thearms
and imprisonment during the Kings pleasure."

It is hard to imagine a right that would somehow contradict prohibited and antisocial activity. Indeed, the crime of Going Armed to the Terror of the People consists of the following elements:

A person guilty of this offense
(1) arms himself or herself with an unusual and dangerous weapon
(2) for the purpose of terrifying others and
(3) goes about on public highways
(4) in a manner to cause terror to the people.

Element (1). In State v. Huntly, 25 N.C. 418 (1843), the court held that any gun is an unusual and dangerous weapon for purposes of this offense. Huntly, 25 N.C. at 422. In that case it was argued that a gun cannot constitute an unusual weapon, “for there is scarcely a man in the community who does not own and occasionally use a gun of some sort.” Id. The court rejected that argument, concluding: “A gun is an ‘unusual weapon,’ wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements–as a part of his dress–and never we trust will the day come when any deadly weapon will be worn or wielded in our peace loving and law-abiding State, as an appendage of manly equipment.” Id.Element (4). The offense of affray involves fighting in
public to the terror of the people. For purposes of that offense, cases
hold that if members of the public experience fear, the “to the terror
of the people” element is satisfied.In re May, 357 N.C. 423,
428 (2003). In an unpublished case involving a charge of going armed to
the terror of the people, the North Carolina Court of Appeals found this
element satisfied where the defendant shot his gun while driving
closely behind another vehicle on a public highway. State v. Toler, 716
S.E.2d 875 (N.C. App. 2011) (unpublished) (rejecting the defendant’s
argument that his actions were not “to the terror of the people” where
the only people involved were those in the victim’s car, and stating:
“We find this to be substantial evidence that this behavior was intended
to be to the terror of the people and was in fact to the terror of the
people. The fact that a limited number of witnesses testified regarding
Defendant’s actions does not change the character of those actions.”).

In other words, if one causes fear in the general public then you are guilty of this offence.

As I said before, William Rawle explained this in relation to the Second Amendment in his treatise "A View of the Constitution of the United States", 125--26 1829 (2d ed.):

"This right ought not, however, in any government, to be abused to the disturbance of the public peace.

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment."

While some people would like to claim that carrying weapons in public is covered by the Second Amendment, Presser v. Illinois, 16 U.S. 252 [1886]

It cannot be successfully questioned that the state governments,
unless restrained by their own constitutions, have the power to regulate
or prohibit associations and meetings of the people, except in the case
of peaceable assemblies to perform the duties or exercise the
privileges of citizens of the United States, and have also the power to
control and regulate the organization, drilling, and parading of
military bodies and associations, except when such bodies or
associations, are
[116 U.S. 252, 268]
authorized by the militia laws of the United States. The
exercise of this power by the states is necessary to the public peace,
safety, and good order. To deny the power would be to deny the right of
the state to disperse assemblages organized for sedition and treason,
and the right to suppress armed mobs bent on riot and rapine.

Although, one thing that the Presser court made clear was that the Second Amendment right was tied to militia service and that carrying weapons outside that context was not covered by the Amendment.

The right voluntarily to associate together as a military company or
organization, or to drill or parade with arms, without, and independent
of, an act of congress or law of the state authorizing the same, is not
an attribute of national citizenship. Military organization and military
drill and parade under arms are subjects especially under the control
of the government of every country. They cannot be claimed as a right
independent of law. Under our political system they are subject to the
regulation and control of the state and federal governments, acting in
due regard to their respective prerogatives and powers. The constitution
and laws of the United States will be searched in vain for any support
to the view that these rights are privileges and immunities of citizens
of the United States independent of some specific legislation on the
subject.

As I have said before, I'm rather surprised that Presser has been neglected in Second Amendment jurisprudence. Although, maybe surprise is the wrong word to use since this decision so clearly supports the "Civic Right" interpretation of the Second Amendment by pointing out that the right to bear arms is only protected when it relates to militia service.

Presser was doing what open carry advocated do these days and walking about claiming his Second Amendment right to bear arms in public. He was not engaging in menacing activity (although the common law does not really require actual menace, the mere fact one is carrying a weapon in public is enough to prove menace). To be quite frank, Presser is the gun rights fanatic's worst nightmare.

I would add that any "incorporation" issue is also addressed in this decision by pointing out that the Second Amendment right DOES apply to the states if they were to abridge the continuation and render possible the effectiveness of militias under the aspect of Article I, Section 8, clauses 15 & 16, not private uses.

As US v. Miller said, [it is] With obvious purpose to assure the continuation and render possible the
effectiveness of such forces the declaration and guarantee of the Second
Amendment were made. It must be interpreted and applied with that end
in view. Which means, as William Rawle pointed out, the first and second clauses of the Second Amendment are corollaries and must be considered together.

There is no right to go about armed outside the context of national service and the law should not be misinterpreted to say there is. Additionally, one cannot claim a right to terrorise people.

A group of some 30 African-American gun rights advocates marched in
South Dallas Wednesday evening to promote self-defense and protest
police shootings.

The newly formed group, calling themselves the Huey P. Newton Gun
Club after one of the founders of the 1960s Black Panther party,
open-carried rifles and shotguns on their evening walk along Malcom X
and Martin Luther King boulevards. The peaceful activists, clad in
black, according to the Dallas Morning News, chanted “Black Power” and “Justice for Michael Brown” along their route.

“We think that all black people have the right to self-defense and
self-determination,” said Huey Freeman, a march organizer. “We believe
that we can police ourselves and bring security to our own communities.”

“A gun is an ‘unusual weapon,’ wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements–as a part of his dress–and never we trust will the day come when any deadly weapon will be worn or wielded in our peace loving and law-abiding State, as an appendage of manly equipment.
State v. Huntly, 25 N.C. 418, 418 (1843)

Actual passage from the decision:
The bill of rights in this State secures to every man indeed, the right to "bear arms for the defence of the State." While it secures to him a right of which he cannot be deprived, it holds forth the duty in execution of which that right is to be exercised. If he employ those arms, which he ought to wield for the safety and protection of his country, to the annoyance and terror and danger of its citizens, he deserves but the severer condemnation for the abuse of the high privilege, with which he has been invested.

"It has been remarked, that a double--barrelled gun or any other one, cannot in this country come under the description of "unusual weapons," for there is scarcely a man in the community who does not own and occasionally use guns of some sort. But we do not feel the force of this criticism. A gun is an "unusual weapon," wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements-as a part of his dress-and never we trust will the day come when any deadly weapon will be worn or wielded in our peace loving and law-abiding State, as an appendage of manly equipment. But although a gun is an "unusual weapon," it is to be remembered that the carrying of a gun per se constitutes no offence. For any lawful purpose-either of business or amusement-the citizen is at perfect liberty to carry his gun. It is the wicked purpose-and the mischievous result-which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people."

Sunday, August 24, 2014

NOTE: The right judicially created by the Heller-McDonald cases does not extend beyond the curtilage (boundaries of the home).

I've been quoting William Rawle a lot lately since it is pretty much a given that there is no right to walk about carrying weapons in such a way that is likely to commit a disturbance of the peace (see Blackstone, Commentaries on the Laws of England, Chapter XI. Of Offences Against the Public Peace).

William Rawle explains this in relation to the Second Amendment in his treatise "A View of the Constitution of the United States", 125--26 1829 (2d ed.):

"This right ought not, however, in any government, to be abused to the disturbance of the public peace.

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment."

In other words, people are well within their rights to call the police if they see someone carrying a weapon in public: after all, that is the police's job to deal with people who could possibly be causing a breech of the peace.

In fact, there are some seriously good legal precedent that say someone carrying a weapon in public must give surety, or at least have some form of licence.

While the Cruikshank case isn't really useful for Second Amendment precedent, the Presser case sure as hell is where it says that the government has the right to licence the carrying of weapons outside the Militia context.

Also, it's interesting that people cite to Rawle and call his treatise a landmark text. They even mention that Rawle says that the Second Clause is a corollary clause, yet they miss that the word "corollary" implies a relationship:

a statement that follows readily from a previous statement.

In other words, there is a relationship between the first and second clauses of the Second Amendment, whether people want to admit that these days. The Miller Court reiterated that when it said, "With obvious purpose to assure the continuation and render possible the
effectiveness of such forces the declaration and guarantee of the Second
Amendment were made. It must be interpreted and applied with that end
in view."

And, as Presser pointed out:

It cannot be successfully questioned that the state governments,
unless restrained by their own constitutions, have the power to regulate
or prohibit associations and meetings of the people, except in the case
of peaceable assemblies to perform the duties or exercise the
privileges of citizens of the United States, and have also the power to
control and regulate the organization, drilling, and parading of
military bodies and associations, except when such bodies or
associations, are
[116 U.S. 252, 268]
authorized by the militia laws of the United States. The
exercise of this power by the states is necessary to the public peace,
safety, and good order. To deny the power would be to deny the right of
the state to disperse assemblages organized for sedition and treason,
and the right to suppress armed mobs bent on riot and rapine.

I find it hard to say that carrying arms in public outside of the militia/national defence context is in any way a protected act by the Second Amendment.

Heller is wrongly decided and does not properly follow the Second Amendment Jurisprudence as set out by the Supreme Court.

7.
That the people have a right to bear arms for the defence of themselves
and their own state, or the United States, or for the purpose of
killing game; and no law shall be passed for disarming the people
or any of them, unless for crimes committed, or real danger of public
injury from individuals; and as standing armies in the time
of peace are dangerous to liberty, they ought not to be kept up: and
that the military shall be kept under strict subordination to and be
governed by the civil powers.

Of all the actual primary source literature I've read, this is the most "gun friendly". But even with being "gun friendly" the no
law shall be passed for disarming the people or any of them, unless for
crimes committed, or real danger of public injury from individuals says to me that they would have no problem with gun control.

More importantly, the real issue for them is the last part of this:

as
standing armies in the time of peace are dangerous to liberty, they
ought not to be kept up: and that the military shall be kept under
strict subordination to and be governed by the civil powers.

If you read the actual document, that this the main concern at the time and what the Second Amendment relates to: not private guns.

The reality is that the Second Amendment relates to:

as
standing armies in the time of peace are dangerous to liberty, they
ought not to be kept up: and that the military shall be kept under
strict subordination to and be governed by the civil powers.

And Article I, section 8, clause 16 of the US Constitution.

Anyone
with a shred of knowledge of the US constitution knows this is the
case, with the exceptions of five people on the Supreme Court.

The constitution and laws of the United States will be searched in
vain for any support to the view that these rights are privileges and
immunities of citizens of the United States independent of some specific
legislation on the subject.

If the right to keep and bear arms is so important: why didn't Maryland, New York, and New Jersey from the original 13 colonies adopt these provisions in their constitutions? Indeed, why do only 44 states have such provisions.

I would add that one of the original colonies also added this provisions to its constitutions in recent time (Delaware).

Here's a sampling:

Connecticut: Every citizen has a right to bear arms in defense of himself and the state. Art. I, § 15 (enacted 1818, art. I, § 17). The original 1818 text came from the Mississippi Constitution of 1817.

Delaware: A person has the right to keep and bear arms
for the defense of self, family, home and State, and for hunting and
recreational use. Art. I, § 20 (enacted 1987).

Massachusetts: The people have a right to keep and to
bear arms for the common defence. And as, in time of peace, armies are
dangerous to liberty, they ought not to be maintained without the
consent of the legislature; and the military power shall always be held
in an exact subordination to the civil authority, and be governed by it. Pt. 1, art. 17 (enacted 1780).

New Hampshire: All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state. Pt. 1, art. 2-a (enacted 1982).

Pennsylvania:That the people have a right to bear arms for the defence
of themselves and the state; and as standing armies in the time of peace
are dangerous to liberty, they ought not to be kept up; And that the
military should be kept under strict subordination, to, and governed by,
the civil power. Declaration of Rights, cl. XIII, 1776.

Virginia: That a well regulated militia, composed of
the body of the people, trained to arms, is the proper, natural, and
safe defense of a free state, therefore, the right of the people to keep
and bear arms shall not be infringed; that standing armies, in time of
peace, should be avoided as dangerous to liberty; and that in all cases
the military should be under strict subordination to, and governed by,
the civil power. Art. I, § 13 (enacted 1776 without explicit right
to keep and bear arms; "therefore, the right to keep and bear arms
shall not be infringed" added in 1971).

Rhode Island: The right of the people to keep and bear arms shall not be infringed. Art. I, § 22 (enacted 1842).

Of these, I find that Massachusetts provision relates only to arms for the common defence and mentions the standing army issue. In fact, I see that the standing army issue is mentioned in a few of the other original colonies' provisions.

As I said, if this was such an important issue and personal guns were so important: why aren't they mentioned?

Seriously, wouldn't this be top on the list of everybody, the way pro-gunners like telling us how important this "right" happens to be? Also, why the mentions of the common defence and standing armies if this is about a "personal" right to arms outside that context?

As I said, if you look hard, the pro-gun arguments start to fall apart.

Footnote to this, I didn't add some of the Southern States since the provisions I found appear to be from after the Civil War.

The current issue of The Economist contains a striking factoid:
“Last year, in total, British police officers actually fired their
weapons three times. The number of people fatally shot was zero.” By contrast, there are about 400 fatal shootings each year by local police in the United States.When
I tweeted out this stunning stat earlier this week, no shortage of
people noted an obvious explanation for why British police were so much
less likely to fire their guns: there were far fewer guns around them.
The U.K. has some of the world’s strictest limitations on gun ownership—handguns
are all but prohibited, while shotguns and rifles require a police
certificate and special justification (self-defense does not qualify.)
There are an estimated 14,000 handguns in civilian hands in the U.K.
(population 63 million) and slightly more than 2 million shotguns and
rifles. Estimates for the number of total firearms in civilian hands in
the U.S. float north of 300 million. Simply put, if the police in the U.S. seem a lot more on edge than those across the pond, they have good reason to be.

There is indeed agreement between many liberals and libertarians
that the militarization of the police, especially in its dealings with
racial minorities, has gone too far. But this consensus may crumble
pretty quickly when it’s confronted with the obvious police
counter-argument: that the authorities’ heavy firepower and armor is
necessary in light of all the firepower they’re up against. At that
point, many liberals will revert to arguing for sensible gun control
regulations like broader background checks to keep guns out of the hands
of violent felons and the mentally ill (the measure that police
organizations successfully argued should be the gun control movement’s legislative priority following the Newtown, Connecticut shootings)
or limits on assault weapons and oversized ammunition clips. And
liberals will be reminded that the libertarians who agree with them in
opposing police militarization are very much also opposed to the gun
regulations that might help make the environment faced by police
slightly less threatening.